HomeMy WebLinkAboutActive Network, LLC PRODUCTS AND SERVICES AGREEMENT
CONTRACT#00065518
CLIENT INFORMATION
ORGANIZATION FULL City of Auburn. WA ; ADDRESS: 25 West Main Street
LEGAL NAME: Auburn, WA 98001
CoNTAcrNAMIi: 'ChrissyMalave TELEPHONE: (253)288-3162
EM:uL: temalave@auburnwa.gov FAX:
•
OVERVIEW OF AGREEMENT
This document("Agreement")consists of this cover page,and the following Schedules and Exhibits(check all
applicable Appendices)
® j Appendix I: Hosted Software
® Appendix 2: Licensed Software; Support and Maintenance
® Appendix 3: Third Party Products
Schedule
Exhibit A: Maintenance Exhibit
NOTE: II'Client is tax exempt,certificate must he provided along with signed contract.
In consideration of the mutual promises and covenants contained in this Agreement,Client and Active hereby
agree to be bound by this Agreement. By signing below, Client acknowledges and confirms that it has read
this Agreement.
CLIENT ACTIVE NETWORK, LLC("ACrivE")•
Signature: ,�. Iru...t� Signature: % U
Name: ` \CA' ` ?-rte ciA,LcS Name Si P✓. / b. j/osk,e1 S
Title: `--NMC `,rte Title: Ce e�«/ /•I.fu'1N..�{er
Date: g.1) . 15 Date: 9 _ _ I J
D
cg-ei Network, LLC, 10182 Telesis Court, San Diego,California 92121
-r- .kr-- Ny Telephone: (858)964-3801
TERMS APPLICABLE 1'O ALL PRODUCTS AND hardware specifications previously described to Client as
SERVICES applicable to the Licensed Software to be installed and used
I. INTERPRETATION upon it.
1.1 Definitions. For the purposes of interpreting this (m) "Licensed Software" means computer code and
Agreement, the following terms will have the following programs, in executable code form only, including related data
files, rules, parameters and documentation, which have been
meanings: created or licensed by Active and are identified in a Schedule
(a) "Active" means Active Network, LLC as referenced on as licensed (or sublicensed) to Client by Active in connection
the first page of this Agreement. with this Agreement, and/or which are in the future provided
to Client by Active under any circumstances unless provided
(b) "Affiliates" of a designated corporation, company or
under a separate licensing agreement.
other entity means all entities which control, are controlled by,
or are under common control with the named entity, whether (n) "Maintenance" means the provision of error
directly or through one or more intermediaries. For purposes investigation and repair services as set out in Sections 20
of this definition "controlled" and "control" mean ownership through 23, the Support and Maintenance Handbook attached
of more than fifty percent(50%) of the voting capital stock or as Exhibit A, and the provision of new Versions and Releases
other interest having voting rights with respect to the election in respect of the Licensed Software all as more particularly set
of the board of directors or similar governing authority. out in the Support and Maintenance Handbook.
(c) "Agreement" means this Products and Services (o) "Module" means a single module element of Licensed ,
Agreement, inclusive of all Appendices, Schedules and Software listed in a Schedule. •
exhibits. (p) "Online Services" means services, such as Internet
(d) "Client" means the legal entity other than Active registration, that are enabled by Hosted Software and available
entering this Agreement. to the public via the Internet.
(e) "Concurrent Use" means use at the same moment in (q) "Other Services" means Services other than
time to access a given server computer(of any kind) owned or Professional Services as provided in an agreed Schedule.
controlled by Client. (r) "Payment Server"means a single server computer used
(f) "Database Server" means the single server computer by Client to process electronic payments from its clients,
upon which the Enterprise Database is resident. having a minimum configuration as set out in hardware
specifications previously described to Client as applicable to
(q) "Effective Date" means the last date set forth on page the Licensed Software to be installed and used upon it.
one of this Agreement.
(h) "Enterprise Database" means the MSDE, MS SQL (s) "Products" means all Licensed Software, Hosted
Server,"Enterprise
Oracle database files containing the client data and that Software, Third Party Products, and other products(including
documentation)provided to Client by or on behalf of Active.
are accessed by the Licensed Software.
(I) "Hosted Software" means computer code and programs, (t) "Professional Services" means any and all types of
services which Active provides, to Client and/or to other
in executable code form only, including related data files, clients of Active, in the course of Active's business, including
rules,parameters and documentation, which have been created but not limited to services relating to the installation,
or licensed by Active and are identified in a Schedule as implementation, optimization, administration, training and
licensed (or sublicensed) to Client by Active in connection troubleshooting of computers, computer software including
with this Agreement,and which reside on Active's servers and the Licensed Software, computer networks, databases,
are accessible by Client's staff or Users via the Internet. internet-related equipment and applications, but expressly
(j) "Internet Client" means a remote device capable of excludes Support and Maintenance. Professional Services
using the Internet to access selected Licensed Software on the shall be as set forth in the applicable Schedule.
Internet Server or the Enterprise Database on the Database (u) "Release" means any release, update, patch, set of
Server via the Internet Server. revisions, or bug/permanent fix or temporary bypass solution
(k) "Internet Server" means a single server computer used released by Active to its clients generally during the term of
by Client which enables access to the Licensed Software by this Agreement, which provides enhancements and/o• error
individuals using an Intranet or the Internet, having a corrections to the then-current Version or Release, and where
minimum configuration as set out in hardware specifications a new Version has been released and no new Release has been
previously described to Client as applicable to the Licensed released since the release of that Version, that Version will
Software to be installed and used upon it. also constitute a Release for the purpose of determining
whether Support or Maintenance is available with respect to
(I) "[VII Server" means a single server computer used by that Version. New Releases will be denoted by an increase to
Client for voice-recognition and telephone-based, rather than the version number to the right of the decimal point such as
computer-based, access to the Enterprise Database by Client's from Release 1.1 to Release 1.2.
clients, having a minimum configuration as set out in
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(v) "Schedule" means a schedule, quote, pricing form,order (if) "Workstation" means a computer attached to a local or
form, or similar document associated with this Agreement that wide-area network(including an Intranet), which accesses the
lists the Products and Services provided by Active to Client Licensed Software or Enterprise Database.
hereunder and the related fees. The features, services, options, 1.2 Headings. The headings contained in this Agreement are
and fees may be described more filly on web pages describing
the Software and Services, and/or in an applicable Schedule, inserted for convenience and do not form a part of this
Each Schedule will reference this Agreement or the Contract Agreement and are not intended to interpret,define or limit the
Number above (if applicable), must be signed by Client and scope, extent or intent of this Agreement or any provision
will be governed by and incorporated into this Agreement. _ hereof.
(w) "Services" means all Professional Services, Support and 2. CHARGES AND PAYMENTS
Maintenance, Online Services, and Other Services provided to 2.1 Taxes. Client will pay all applicable sales, use,
Client by or on behalf of Active. withholding and excise taxes, and any other assessments
(x) "Software"means the Licensed Software and the hosted against Client in the nature of taxes,duties or charges however
Software as defined elsewhere in this Section. designated on the Services and Products or their license or use,
on or resulting from this Agreement, exclusive of taxes based
(y) "Support" means the ongoing telephone, email, web- on the net income of Active, unless exempted by law and
based and dial-in support and problem resolution to assist unless a valid tax exemption certificate has been provided to
Client in the use of the Licensed Software, the Hosted Active prior to invoicing.
Software,and Other Services and Products of Active as set out 2.2 Currency. Unless otherwise indicated in a Schedule, all
in the Support and Maintenance Handbook. prices are in the currency of the country y yin which Client is
(z) "Support and Maintenance Handbook" means the located.
documents published by Active setting out the applicable 2.3 Delivery. Delivery for Products supplied by Active
service levels, processes, restrictions, and other particulars of
Support and Maintenance provided in respect of the Software under this Agreement will be deemed to have occurred F.O.B.
and Other Services and Products of Active, as amended from origin, which in the case of Licensed Software and/or Hosted
time to time upon notice to Client. Software will typically be in the form of an email from Active •
providing a FTP (i.e. file transfer protocol)downloadable link.
(aa) "Support and Maintenance Start Date" means, for To the extent applicable, Client will be responsible for
implementations performed by Active, the first day of shipping and handling costs.
implementation of the Licensed Software or ninety (90) days meat.2.4 Invoices/Payment. Active will
following the delivery of the Licensed Software, whichever y provide invoices to
occurs first, and upon delivery of the Licensed Software for Client for all amounts owing by Client hereunder. Payment of
implementations being performed by the client or a 3`d party
invoices is due within thirty (30) days from the date of
vendor. invoice.
(bb) "System Utilities" includes the following: Accounting 3. CLIENT INFORMATION; CONFIDENTIALITY
Processes, Central Login, Log File, Copy Database, Maintain 3.1 Client Information and Obligations. In order to assist
Database, MSDE Tool, Oracle Setup Utility, Query Tool, Active in the successful provision of Services and Products to
System Maintenance, Upgrade Database and View Client, Client shall (i) provide to Active information relating
Components, to Client's organization, technology platforms, systems
(cc) "Third Party Products" means those hardware, configurations, and business processes and otherwise relating
firmware and/or software products, provided to Active by to Client that is reasonably requested by Active from time to
third parties, listed in a Schedule, together with all user time, (ii) make available such personnel assistance to Active
to
manuals and other documents accompanying the delivery of
as may be reasonably necessary for Active er perform
the Third Party Products, provided that the Third Party hereunder;lin and (iii) carry out in a timely manner all other •
Products shall not include software developed by Active.
hereunder ant responsibilities set forth herein. Any delay by Client
he shall result in a day-for-day extension of Active's
(dd) "User" means a person who accesses and uses any of the dependent obligations.
Products in any manner whatsoever. 3.2 Confidential Tn forma don.
(ee) "Version" means a version of the Licensed Software
providing a particular functionality, while a new Version of (a) In the performance of or otherwise rt connection with
the Licensed Software will provide new/additional this Agreement, one party ("Disclosing Party") may disclose
functionality and/or improvements to a previous Version. New to the other party ("Receiving Party") certain Confidential
Versions will be denoted by a change to the version number to Information of the Disclosing Party. "Confidential
the left of the decimal point such as from Version 1.0 to Information" means any information of either party, which is
Version 2.0. not generally known to the public, whether of a technical,
business or other nature(including, but not necessarily limited
to: trade secrets, know how, computer program source codes,
and information relating to the clients, business plans,
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promotional and marketing activities, finances and other FAULT OR NEGLIGENCE OF ANY PARTY OTHER
business affairs of such party); provided that the same is THAN ACTIVE.
conspicuously marked or otherwise identified as confidential
4.3 NO INDIRECT DAMAGES. WITHOUT LIMITING
receipt proprietary information prior to, upon or promptly the after THE GENERALITY OF SECTIONS 4.1 AND 4.4, IN NO
eceipt by ' s other party; and provided further that the any EVENT WILL ACTIVE BE LIABLE TO CLIENT OR TO
software or software application server source code provided ANY OTHER PARTY FOR INDIRECT DAMAGES OR
by Active or its licensors shall be deemed to constitute LOSSES (IN CONTRACT OR TORT OR OTHERWISE),
Confidential Information without further designation by INCLUDING BUT NOT LIMITED TO DAMAGES FOR
Active. The Receiving Party will treat such Confidential LOST PROFITS, LOST SAVINGS, LOST DATA, LOSS OF
Information as confidential and proprietary of the Disclosing USE OF INFORMATION OR SERVICES, OR
Party and will use such Confidential Information solely for the INCIDENTAL, CONSEQUENTIAL, OR SPECIAL
purposes for which it is provided by the Disclosing Party and DAMAGES. Notwithstanding the foregoing, Active shall be
will not disclose such Confidential Information to any third liable for damages resulting from personal injury or damage to
party (other than a third party under contract whereby that tangible property arising from the gross negligence or willful
third party has agreed in writing to keep the Confidential misconduct of Active.
Information confidential).
(b) Exclusions. The obligations under this paragraph will Active will correct non-confirming servers which are due to
not apply to any: (i) use or disclosure of any information errors on the part of Active. Should any customer-supplied
pursuant to the exercise of the Receiving Party's rights tinder
data be lost or damaged through error on the part of Active, it
this Agreement; (ii) information that is now or later becomes shall regenerate or replace the lost or damaged data. Client
publicly available through no fault of the Receiving Party; (iii) should maintain adequate support materials to enable Active
information that is obtained by the Receiving Party from a to regenerate data furnished by Client. Failure by Client to
third party authorized to make such disclosure (other than in give notice of non-conforming services within 20 days of
connection with this Agreement) without any obligation of performance of such services shall constitute final acceptance
secrecy or confidentiality; (iv) information that is of those services. Active shall not be responsible for non-
independently developed by the Receiving Party(e.g., without confirming services which are caused by inaccurate or
reference to any Confidential Information); (v) any disclosure incomplete data programs or software supplied by client,
required by applicable law (e.g., pursuant to applicable 4.4 LIMITS ON LIABILITY. IF, FOR ANY REASON,
securities laws or legal process), provided that the Receiving ACTIVE BECOMES LIABLE TO CLIENT OR ANY
Party will use reasonable efforts to give advance notice to and OTHER PARTY FOR DIRECT OR ANY OTHER
cooperate with the Disclosing Party in connection with any DAMAGES FOR ANY CAUSE WHATSOEVER, AND
• such disclosure;and(vi)any disclosure with the consent of the REGARDLESS OF THE FORM OF ACTION (IN
Disclosing Party. CONTRACT OR TORT OR OTHERWISE),THEN:
4. EXCLUSION OF WARRANTIES AND (a) THE TOTAL AGGREGATE LIABILITY OF ACTIVE
LIMITATION OF LIABILITY TO CLIENT AND ALL OTHER PARTIES IN
4.1 SPECIFIC EXCLUSION OF OTHER CONNECTION WITH THIS AGREEMENT WILL BE
WARRANTIES. THE EXPRESS WARRANTIES SET OUT LIMITED TO THE AMOUNT OF FEES ACTUALLY PAID
EN THIS AGREEMENT ARE IN LIEU OF ALL OTHER BY CLIENT TO ACTIVE AS CONSIDERATION FOR THE
WARRANTIES, AND THERE ARE NO OTHER PRODUCTS AND SERVICES GIVING RISE TO SUCH
WARRANTIES, REPRESENTATIONS, CONDITIONS, OR CLAIM DURING THE 'TWELVE (12) MONTH PERIOD
GUARANTEES OF ANY KIND WHATSOEVER PRECEDING THE DATE ON WHICH THE CAUSE OF
APPLICABLE, EITHER EXPRESS OR IMPLIED BY LAW ACTION AROSE;AND
(IN CONTRACT OR TORT OR OTHERWISE) OR (b) IN ANY CASE CLIENT MAY NOT BRING OR
CUSTOM, INCLUDING, BUT NOT LIMITED TO THOSE INITIATE ANY ACTION OR PROCEEDING AGAINST
REGARDING MERCHANTABILITY, FITNESS FOR ACTIVE ARISING OUT OF THIS AGREEMENT OR
PURPOSE, DURABILITY, CORRESPONDENCE TO RELATING TO ANY PRODUCTS OR SERVICES
SAMPLE, TITLE, DESIGN, CONDITION, OR QUALITY. PROVIDED HEREUNDER MORE THAN TWO YEARS
WITHOUT LIMITING THE ABOVE, ACTIVE DOES NOT AFTER THE RELEVANT CAUSE OF ACTION HAS
WARRANT THAT ANY PRODUCTS OR SERVICES ARISEN.
PROVIDED HEREUNDER WILL MEET THE
REQUIREMENTS OF CLIENT OR THAT THE 4.5 SEPARATE ENFORCEABILITY. SECTIONS 4.1
OPERATION OF PRODUCTS AND SERVICES THROUGH 4.4 ARE TO BE CONSTRUED AS SEPARATE
PROVIDED HEREUNDER WILL BE FREE FROM PROVISIONS AND WILL EACH BE INDIVIDUALLY
INTERRUPTION OR ERRORS. ENFORCEABLE.
4.2 RESTRICTIONS ON WARRANTY. ACTIVE HAS 4.6 For the purposes of this Section 4, reference to Active
NO OBLIGATION TO REPAIR OR REPLACE PRODUCTS shall also include its suppliers and licensors.
DAMAGED BY EXTERNAL CAUSE OR TI-IROUGI-I THE
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4.7 Adequate Resources. Active represents and warrants documentation; (iv) not contest or do or aid others in
that it has resources, personnel, expertise and corporate contesting or doing anything which impairs the validity of any
infrastructure available to deliver and support the design, proprietary or intellectual property rights, title, or interest of
delivery, implementation, and maintenance of the Licensed Active in and to any Products; (v) not obliterate, alter, or
Software and Professional Services and meet any milestones remove any proprietary or intellectual property notices from
and/or deadlines imposed by this agreement, unless the terms the Products in physical or electronic forms; (vi) not use the
and conditions of this agreement specify otherwise, Active Products to transmit, publish, or distribute any material or
further represents and warrants that all services shall be information: (a) for which Client does not have all necessary
provided with reasonable care, in a workmanlike and rights and licenses, including any material or information that
professional manner; and the human resources assigned to infringes, violates, or misappropriates the intellectual property
perform services for the City shall be qualified, experienced, rights of any third party; (b) that contains a computer virus or
and technically trained. other code, files, or programs designed to disrupt or interfere 1
5. RESTRICTIONS with the functioning of the Products; or(c) that is or that may I
reasonably be perceived as being harmful, threatening,
5,1 U.S. GOVERNMENT RESTRICTED RIGHTS. The offensive, obscene, or otherwise objectionable; (vii) not
Products are provided with restricted rights. Use, duplication, attempt to gain access to any systems or networks that connect
or disclosure by the U.S. Government is subject to restrictions thereto except for the express purpose of using the Products
as set forth in subparagraph (c) of The Rights in Technical for their intended use; (viii) not rent, lease, sublicense, resell,
Data and Computer Software clause at DEARS 252.227-7013, or provide access to the Products on a tine-share or service
or subparagraphs (b)(l) and (2) of the Commercial Computer bureau basis; and (ix) not input credit card information into
Software - Restricted Rights at 48 CFR 52.227-19, as the Products or solicit the input of such information other than
applicable. The Manufacturer is Active Network, LLC or one in pre-defined fields within the Products that are intended for
of its Affiliates or subsidiaries. that purpose.
5.2 Export Restrictions. The Products may include 6. TERMINATION
encryption software or other encryption technologies that may 6.1 Termination.This Agreement will terminate:
be controlled for import, export, or purposes under the laws
and regulations of the countries and/or territories in which the (a) at the option of either party if the other party materially
Products are used("Applicable Law"). Client may not export, defaults in the performance or observance of any of its
re-export, or assist or facilitate in any manner the export or re- obligations hereunder and fails to remedy the default within
export of, any portion of the Products, as determined by thirty(30)days after receiving written notice thereof;and
Applicable Law under which Client operates: (i) to any
country on Canada's Area Control List; (ii)to any country (b) without limiting (a), at the option of Active if Client
subject to UN Security Council embargo or action; (iii) breaches its payment obligations, provided that the right of
contrary to Canada's Export Control List Item 5505; (iv) to termination will be in addition to all other rights and remedies
countries subject to U.S. economic sanctions and embargoes; available to the parties for breach or default by the other.
and (v) to persons or entities prohibited from receiving U.S. 6.2 Suspension of Obligations. If either party should
exports or U.S.-origin items. Client hereby represents and materially default in the performance or observance of any of
covenants that: (i) to the best of Client's knowledge Client is its obligations hereunder, then, in addition to all other rights
eligible to receive the Products under Applicable Law; and remedies available to the non-defaulting party, the non-
(ii)Client will import, export, or re-export the Products to, or defaulting party may suspend performance and observance of
use the Products in, any country or territory only in any or all its obligations under this Agreement, without
accordance with Applicable Law; and (iii) Client will ensure liability, until the other party's default is remedied, provided
that Client's Users use the Products in accordance with the however that this Section will not permit Client to suspend its
foregoing restrictions. obligation to make any payments due for Products or Services
5.3 Third Party Software and Open Source Components. that are unrelated to any default alleged against Active.
The Software may contain open source components or other 6.3 Return of Materials. In the event of termination of this
third party software of which the use, modification, and Agreement for any reason whatsoever, Client will
distribution is governed by license terms (including limitations immediately (i) return to Active all physical copies of
of liability) set out in the applicable documentation (paper or Products delivered by Active to Client or otherwise in Client's
electronic)or read me files. possession or control, or(ii) if expressly permitted by Active,
5.4 Restrictions; Acceptable Use Policies. Client shall: (i) destroy all physical copies of the Products not returned to
use the Products exclusively for authorized and legal purposes, Active and delete all electronic copies of the Products from its
consistent with all applicable laws, regulations, and the rights systems and certify in writing to Active that such actions have
of others, including privacy and anti-spamming laws; (ii) not all been completed.
reverse engineer, disassemble, or decompile any Products or 7. AUDIT AND MONITORING RIGHTS
prepare derivative works thereof; (iii) not copy, modify,
transfer, display, or use any portion of the Products except as Active may, upon a minimum of twenty-four (24) hours
expressly authorized in this Agreement or in the applicable written notice to Client, attend upon Client's premises and
5
verify that the Products are being used only as permitted defend, settle, or pay Damages for any Claims to the extent
hereby. Such inspections shall be limited to a maximum of based on: (x) any Client or third party intellectual property or
twice per calendar year, and will be performed only during software incorporated in or combined with the Software where
Client's regular business hours and conducted in a manner as in the absence of such incorporated or combined item, there
to minimize, to the extent reasonable, interference with would not have been infringement, but excluding any third
Client's business. Further, Active may, using automatic means party software or intellectual property incorporated into the
which do not interfere with the use of the Products by Client Software at Active's discretion; (y) Software that has been
or Users other than as described in this provision, monitor at altered or modified by Client, by any third party or by Active
any time usage of the Products by Client and or its Users at the request of Client (where Active had no discretion as to
including through monitoring of the number of copies of any the implementation of modifications to the Software or
particular Module(s)in Concurrent Use. documentation directed by Client), where in the absence of
such alteration or modification the Software would not be
8. INTELLECTUAL PROPERTY RIGHTS infringing; or (z) use of any version of the Software with
8.1 Warranty of Title. Active warrants that it has all rights respect to which Active has made available a non-infringing
necessary to make the grant of license herein by having all updated, revised or repaired subsequent version or other
right,title,and interest in and to the Products(other than Third applicable update,patch or fix.
Party Products)or as licensee of all such rights from the owner (c) Client agrees to defend,settle, and pay Damages relating
thereof. to Claims to the extent based on(i) injury or death to a person
8.2 Intellectual Property. Active and its licensors shall or damage to property resulting from the participation in an
retain all right, title,and interest in and to the Products and the event or activity operated by Client in connection with the
results of the Services and to all software, trademarks, service Products and/or Services; (ii) any claim brought by a Third
marks, logos, and trade names and other worldwide Party Beneficiary or brought in connection with Active's
proprietary rights related thereto ("Intellectual Property"). payment to a Third Party Beneficiary of any fees due
Client shall use the Intellectual Property only as provided by hereunder in accordance with this Agreement; and/or (iii)
Active,and shall not alter the Intellectual Property in any way, Client's or any of its User's breach of Section 5.
or act or permit action in any way that would impair Active's (d) Indemnification Claims Procedure. Each party's
or its licensors' rights in its Intellectual Property. Client obligations under this Section are conditioned upon(l)prompt
acknowledges that its use of the Intellectual Property shall not written notice of the existence of a Claim, provided that a
create in Client or any other person any right, title, or interest failure of prompt notification shall not relieve the
in or to such Intellectual Property. Any goodwill accruing Indemnifying Party of liability hereunder except to the extent
from the use of the Intellectual Property shall inure solely to that defenses to such Claim are materially impaired by such
the benefit of Active or its licensors,as applicable, failure of prompt notification; (2)sole control over the defense
9. INDEMNIFICATION or settlement of such Claim by the Indemnifying Party; and
(a) Each party (the "Indemnifying Party") shall defend, (3) the provision of assistance by the Indemnified Party at the
O p` y ( y g y ) ' Indemnifying Party's request to the extent reasonably
settle, and pay judgments, costs, and damages (including necessary for the defense of such Claim.
reasonable attorneys' fees) ("Damages") relating to any third
party claim, demand, cause of action or proceedings (whether (e) For the purposes of this Section 9, reference to Active
threatened, asserted, or filed) ("Claims") against the other shall also include its suppliers and licensors.
party hereto(the"Indemnified Party") to the extent that such (f) Notwithstanding the foregoing,Client shall not be bound
Claim is based upon provision, by the Indemnifying Party, of by the terms of this Section 9 to the extent precluded by
materials, products, or services as part of such party's applicable law (e.g., sovereign immunity of a governmental
obligations hereunder that infringe the intellectual property entity).
rights of any third party provided that such materials,
products, or services are used in accordance with this 10. GENERAL
Agreement. Entire Agreement. This Agreement, including all
(b) If any Claim that Active is obligated to defend, settle, attachments and referenced Appendices, Schedules and
and pay damages to Client under this Section 9(a) has exhibits, constitutes the complete and exclusive statement of
occurred or, in Active's opinion, is likely to occur, Active the agreement between Active and Client with respect to the
may, at its option and expense either(1) obtain for Client the subject matter hereof. It supersedes and replaces all oral or
right to continue to use the applicable Software, (2) replace or written ItFPs, proposals, prior agreements, and other prior or
modify the Software so it becomes non-infringing, without contemporaneous communications between the parties
materially adversely affecting the Software's specified concerning the subject matter of this Agreement, including
functionality, or(3) if(I) or(2) are not readily available after without limitation that certain Hosted Global Services
using reasonable commercial efforts or, if neither of the Agreement dated as of August 15, 2006 between Client and
foregoing options is commercially reasonable, refund a pro- The Active Network, Ltd. (Active's affiliate), General
rata portion of the fees paid by Client based on its lost use and Software Services Agreement dated as of August 2, 2004
terminate this Agreement. Active shall not be obligated to between Client and Class Software, Ltd.(Active's predecessor
6
in interest),Software License Agreement dated as of August 2, relating to this Agreement shall be instituted only in any state
2004 between Client and Class Software, Ltd. (Active's or federal court in Delaware.
predecessor in interest), Software Support and Maintenance 10.4 Attorney Fees. In any action or suit to enforce any right
Agreement dated as of August 2, 2004 between Client and
Class Software, Ltd. (Active's predecessor in interest), and or remedy under this Agreement or to interpret any provision
Third Party Product Purchase Agreement dated as of August of this Agreement, the prevailing party shall be entitled to
2, 2004 between Client and Class Software, Ltd. (Active's recover its costs, including reasonable attorneys' fees.
predecessor in interest). The Hosted Global Services 10.5 Affiliates. During the term of this Agreement, Client or
Agreement, General Software Services Agreement, Software Client's Affiliates may order additional Products and/or
License Agreement, Software Support and Maintenance Services from Active or one of Active's Affiliates by entering
Agreement, and Thud Party Product Purchase Agreement into a Schedule. In the event that Client or Client's Affiliate •
shall automatically terminate on the Go-Live Date without enters into a Schedule with Active or an Affiliate of Active,
further action by the parties. This Agreement may not be reference in this Agreement to "Client" and "Active" shall
modified or altered except by written instrument duly mean the respective entity that executed the applicable
executed by both parties, except that Active may fill future Schedule. A breach of this Agreement by Active's Affiliate or
purchase or other orders for further goods or services available Client's Affiliate shall not affect the rights, privileges, or
under this Agreement and, if Active does so, the provisions of obligations of Active or Client, as applicable, or any other
this Agreement will contain the only commercial terms Affiliate not in breach of this Agreement.
applicable to such transaction despite such purchase or other 10.6 Non-Assignability.Neither party may assign its rights or
order stating otherwise, Any addendum attached hereto shall
form an integral part of this Agreement and, in the event of obligations arising out of this Agreement without the other
any inconsistency between this Agreement and any addendum, party's prior written consent, except that(i)Active may assign
the provisions of the addendum shall prevail; provided this Agreement to one of its affiliates or in connection with
however, in the case of indemnification, limitations of any sale or security interest involving all or substantially all of
liability, and confidentiality obligations, this Agreement shall its assets or any other transaction in which more than fifty
always control, Any `click-wrap' agreement, terms of use, percent of its voting securities are transferred; and (ii) Client
electronic acceptance or other terms and conditions which automatically assigns this Agreement to the purchaser of all or
attempt to govern the subject matter of this Agreement that substantially all of Client's assets or equity securities or to any
either party might be required to acknowledge or accept before successor by way of any merger, consolidation or other
entering into this Agreement are of no force and effect as corporate reorganization of Client. In the event that any such
between Client and Active and are superseded by this assignment is made by Client pursuant to (ii), Client must
Agreement. provide Active with written notice of such event within thirty
10.1 Force Majeure. Dates or times by which either party is (30) days of such assignment. Active shall have thirty (30)
required to perform under this Agreement, excepting the days from its receipt of such notice to terminate this
payment of any fees or charges due hereunder, will be Agreement without further liability or obligation to Client.
postponed automatically to the extent that any party is 10.7 Term arid Survival. The term of this Agreement shall
prevented From meeting them by causes beyond its reasonable commence on the Effective Date set out on the cover page
control, provided such party promptly notifies the other hereof and shall continue as set forth in Sections 16 or 23.1,as
thereof and makes reasonable efforts to perform. applicable, or until terminated in accordance with Section 6.
10.2 Notices. All notices and requests in connection with this Sections 1.1, 4, 5.4, 6,3, 8.2, 9, 10, 27.t, and 27,2 of this
Agreement will be given to the respective parties in writing Agreement, along with all unpaid payment obligations, will
and will be deemed given as of the first business day of the survive termination and expiration of this Agreement.
notified party following the day the notice is faxed or sent via 10.8 No Authority to Bind. Neither party shall incur any
overnight courier, providing a hard copy acknowledgment of obligations for or in the name of the other party, or have the
such successful faxed notice transmission or evidence of such authority to bind or obligate the other party. Neither party
couriering, as applicable, is retained. Notice may also be shall make, issue or authorize any statements (whether oral or
deposited in the mails, postage pre-paid, certified or written) in contravention of the foregoing.
registered, return receipt requested, and addressed to the
parties as indicated on the face of this Agreement or such 10.9 Counterparts. This Agreement may be executed in
other address of which the party gives notice in accordance separate counterparts and delivered by facsimile or such other
herewith, and receipt of any such notice will be deemed to be electronic means as are available to the Parties. Such
effective as of the third business day following such deposit. counterparts taken together shall constitute one and the same
original document.
10.3 Governing Law. This Agreement shall be governed by
the laws of the State of Delaware, without giving effect to the 10.10 Severability. If any provision of this Agreement is
conflict of laws provisions thereof. Neither the United Nations held by a court of competent jurisdiction to be invalid,
Convention of Contracts for the International Sale of Goods unenforceable, or void, the remainder of this Agreement and
nor the Uniform Computer Information Transactions Act shall such provisions shall remain in full force and effect.
apply to this Agreement. Any legal action or proceeding
7
10.11 Cooperative Procurement. Upon consent by implementation and promotion of the Online Services;
Active, this Agreement may be used for permitted cooperative provided, however, that such use shall be as necessary to
procurement by any public or municipal body, entity, agency Active's performance under this Agreement.
or institution, If so authorized, and in order to forego a related 13. INFORMATION COLLECTION AND
entity RFP or similar competitive bidding process, this AUTHORIZED USERS
Agreement may be extended to such other entities indicated
above for the procurement of similar products and/or services Active may collect certain information from individuals as
provided to Client herein and at fees in accordance with this part of a registration process.Client may login to Active's data
Agreement unless separately negotiated between such other management system to access this information. Both parties
entities and Active. Further related entities participating in a agree to use the collected information in compliance with (i)
cooperative procurement process shall place their own orders all applicable laws, rules and regulations, including, without
directly with Active and will fully and independently limitation, those governing online privacy and use of credit
administer their use of this Agreement to include such card data (i,e. using credit card information only for purposes
contractual obligations as those entities and Active deem authorized by the cardholder); (ii) applicable Payment Card
appropriate without direct administration from the original Industry Data Security Standards; and (iii) Active's privacy
Client. policy as published on its website. Client is solely responsible
_ for the security of its login information, authorization
credentials, and similar access information (collectively
APPENDIX 1: TERMS APPLICABLE ONLY TO "Login Information") and for the use or misuse of such Login
HOSTED SOFTWARE Information, Client agrees to only allow access to and use of
the Products to its authorized users. Client acknowledges and
11. HOSTED SOFTWARE agrees that Active may provide access to or use of the
11.1 Active will provide Client with access to hosted versions Software and Services to anyone utilizing Client's Login
of the Products identified in the applicable Schedule and Information or who is otherwise authorized by Client to use or
associated Online Services, and Active hereby grants to Client access the Software and Services on Client's behalf, Client is
a limited, non-exclusive, non-transferable license to use the responsible for such users' compliance with the terms and
Hosted Software in accordance with the applicable conditions of this Agreement. Active may suspend or
documentation. terminate any such user's access to the Software and Services
upon notice to Client if Active reasonably determines that any
11.2 Client agrees to receive notifications regarding free such user has violated the terms and conditions of this
product, promotional items, and giveaways at Client's Agreement or is otherwise using the Products for suspect
Event(s) or facility(ies), but Client may opt not to receive the proposes. Client will immediately either notify Active in
items from Active. Active agrees not to display writing or disable such user's access if any previously
promotions/deals on the Online Services. authorized Client user is no longer authorized to use the Login
11.3 Client acknowledges that Active: (a) does not monitor or Information or otherwise use or access the Software and
police communications or data transmitted through the Hosted Services. Active may rely, without independent verification,
Software or Online Services by Client or any third party, or on such notice, and Client, inclusive of Client's parent,
any communications or data transmitted by any third party subsidiary and affiliate entities, as applicable,and each of their
suppliers through the Hosted Software or Online Services; (b) respective officers, directors, managers, shareholders, owners,
shall not be responsible for the content of any such agents, employees, contractors, and representatives covenant
communication or transmission; (c) shall have no liability of not to sue and agree to defend, indemnify, and hold harmless
any kind with respect to any materials or information that Active for any claims arising from Active providing, denying,
Client inputs into or transmits, publishes, or distributes suspending,or modifying access to or use of the Software and
through the Hosted Software or Online Services; and (d) may Services of any individual as directed by Client or by someone
remove or modify any such communication or transmission who Active reasonably, under the circumstances, believes is
deemed offensive for which Active has received more than authorized to act on behalf of Client.
one complaint. 14. FEES FOR HOSTEL)SOFTWARE
12. LICENSE AND BRANDING 14.1 Transaction fees.
Active hereby grants to Client a limited, non-exclusive, non- (a) Client shall pay to Active the Hosted Software service
transferable license to display, reproduce, distribute, and fees ("Service Charge(s)") as set out in the applicable
transmit in digital form Active's Warne and logo in connection Schedule.
with promotion of the Online Services only in the manner
approved of by Active during the term of this Agreement. (b) In cases where Active's banking or financial partners or
Client hereby grants to Active a limited non-transferable similar service providers impose changes in processing costs
license to use, display, reproduce, distribute, adapt and payable by Active, Active reserves the right to modify Service
transmit in digital or printed form information provided by Charges to reflect such changes. Active further reserves the
Client relating to its organization, including its name, right to modify the Service Charges once per calendar year,
trademarks, service marks and logo, in connection with the
8
specifications set out in the user documentation accompanying 22.2 For the first year of this Agreement commencing with the
the Software for ninety (90) days from delivery of the Effective Date, Support and Maintenance pricing shall be
Licensed Software ("Warranty Period"). Active's sole equal to twenty-five percent (25%) of the gross software
obligation and liability hereunder with respect to any failure to license fees. ;Support and Maintenance pricing for all
so perform, which is reported to Active in writing by Client successive years shall be equal to twenty-five percent (25%)
within Warranty Period, will be to use reasonable efforts, at of the gross software license pricing charged by Active for
Active's expense, to remedy any functional non-conformity to equivalent software as of the date of each such renewal year,
the specifications set out in the user documentation, Ln the provided, however, that any increase in Active's annual
event Active is unable to remedy such non-conformity within Support and Maintenance pricing for any renewal year shall
a reasonable time using reasonable efforts, Active may refund not exceed ten percent (10%) of the renewal fees charged in
to Client the license fee pertaining to the Licensed Software, the prior year. Any additional software licensed to Client by
subject to Client's return of the Licensed Software, and this Active will increase the total gross software license fees upon
Agreement will be automatically terminated. All warranty which Maintenance and Support pricing is based. Active will
service will be performed at service locations designated by provide invoices to Client for renewal fees up to sixty (60)
Active, This limited warranty is void if failure of the Licensed days prior to expiration of each term.
Software has resulted from accident, abuse or misapplication. 22.3 The Support and Maintenance fees identified in the
Any replacement Licensed Software will be warranted for the applicable Schedule are applicable only upon the date of entry
remainder of the original warranty period or thirty (30) days, into this Agreement, and are subject to change thereafter in
whichever is longer. accordance with this Agreement's terms.
21. EXCLUDED SUPPLIES AND SERVICES 22.4 In consideration of the Support and Maintenance
Without limitation, the following supplies and services are provided hereunder, Client agrees to pay Active the fees
excluded from Support and Maintenance: described in the applicable Schedule, as modified explicitly
pursuant to this Agreement. In the event Client requires
(a) Services which are required to remedy problems that Support and Maintenance for additional Licensed Software,
stem from changes to or defects in system configuration upon Client agrees to pay Active the additional Support and
which the Licensed Software was initially installed; Maintenance fees applicable based upon the fees then in
(b) Services which are required to remedy problems which effect, prorated from the date of agreement to acquire such
do not stern from any defect in Licensed Software; services to the Support Renewal Date.
(c) Services which are required to remedy problems caused 22,5 Unless the applicable Schedule indicates otherwise, the
by lack of training of Client's personnel or improper treatment fees charged hereunder are applicable to Support and
or use of the Licensed Software; Maintenance of Licensed Software used with respect to only a
single database of Client data. If Client, after entering this
(d) Full report customization service; Agreement, places in service one or more additional databases
(e) Any and all hardware support, maintenance or to be used in relation to the Licensed Software, then for each
troubleshooting issues, except as described in Section 26 such additional database, an additional 25% of all gross
regardless of the source of such hardware. Licensed Software fees due, exclusive of such extra database
fees, will be payable hereunder for Support and Maintenance.
22, FEES FOR SUPPORT AND MAINTENANCE Client will notify Active as soon as reasonably possible of the
22.1 Support and Maintenance services begin for all Licensed installation or use of any such additional database(s).
Software listed in the applicable Schedule on the Support and 22.6 Active may terminate and suspend performance of all
Maintenance Start Date. The cost for Support and Support and Maintenance if Client fails to pay any past due
Maintenance services is payable amorally in advance and is Active invoice within thirty(30) days of written notice of such
due in its entirety thirty (30) days from date of Active's failure, in the event of any other material breach by Client
delivered invoice. Client may elect to specify a preferred which remains uncured thirty (30) days after notice thereof or
alternate Support Renewal Date by so notifying Active in if any of the Licensed Software ceases to be subject of a valid
writing. If an alternate preferred Support Renewal Date is software license agreement.
specified, the cost of Support and Maintenance will be
prorated from the anniversary of the Support and Maintenance 22.7 If at any time after Client has initially licensed any of the
Start Date to the specified Support Renewal Date. Thereafter, Licensed Software from Active, Client's right to receive
the Support and Maintenance fee is payable in advance on Support and Maintenance, or comparable services, from
every annual anniversary of the Support and Maintenance Active under this Agreement or a comparable agreement has
Start Date or, if there is a Support Renewal Date, every lapsed for any reason whatsoever, voluntarily or otherwise,
anniversary of the Support Renewal Date (the applicable and Client wishes to receive Support and Maintenance from
anniversary being the "Support Renewal Date").Active will Active, Client will pay to Active, prior to re-instatement of
provide invoices to Client for all such amounts, such invoices Support and Maintenance services:
due on the later of(a)the Support and Maintenance Start Date (a) a reinstatement fee equal to the greater of 50% of the
or applicable Support Renewal Date, as applicable, and current annual support fee or the sum of the unpaid support
(b) thirty(30)days from the date of the invoice.
11
provided that any increase will not exceed twelve and a half 15. EXCLUSIVITY FOR HOSTED SOFTWARE.
percent(12.5%). During the term of this Agreement,Active will be the sole and
(c) Active will be responsible for collecting all payments exclusive provider of registration and other services similar to
processed in a PCI compliant manner through the Online the Hosted Software provided to Client hereunder for the
Services and all Service Charges assessed by Active.The fund events or transactions for which Client is using Active's
shall be covered by Active's crime insurance coverage. On a Software and Services.
bi-weekly basis, unless otherwise set forth in the applicable 16. TERM FOR HOSTED SOFTWARE
Schedule, Active will pay Client sums due to Client based on
•
the total registration fees collected, net of Active's Service Unless otherwise provided in the applicable Schedule, Active
Charges as set forth in the applicable Schedule and any other shall provide to Client, and Client shall license from Active,
deductions provided herein. the Hosted Software commencing on the Effective Date of this
(d) If Client enters transactions at fee amounts less than Agreement, and remaining in full force for a period of three
those actually charged to Client's Users, thus reducing or (3) years from the Go-Live Date of the Hosted Software (the
avoiding applicable Service Charges, such action shall "Initial Term"), with automatic renewals for three (3) year
constitute a material breach of this Agreement. terms (each a "Renewal Tenn") thereafter until either party
gives written notice to terminate the Hosted Software no less
(e) Active shall not be responsible for processing or making than twelve (12)months prior to the end of the Initial Term or
any refunds. In the event Client initiates a refund,a fee may be Renewal Term,as applicable.
charged by Active to Client as set out in the applicable
Schedule. Active may set off against user fees collected by ---°°----
Active to the amount of any credit card chargebacks and APPENDIX 2: TERMS APPLICABLE ONLY TO
associated fees applicable to user transactions and to LICENSED SOFTWARE AND ASSOCIATED SUPPORT
reimburse itself for any overdue fees owed to Active by AND MAINTENANCE SERVICES
Client. To the extent that such funds are not available for set 17. ACCESS TO SYSTEM AND OTHER CLIENT
off,Client shall promptly reimburse Active for any deficiency. OBLIGATIONS
(I) In the event Client is entering into this Agreement and 17,1 Access. Client will provide,at no cost to Active:
using the Hosted Software for the benefit of a third-party
event or organization ("Third Party Beneficiary"), Client (a) subject to the security requirements of Client, 24-hour
agrees that Active may send fees collected by Active directly access to Client's system via either an always-available
to the Third Party Beneficiary. telephone circuit or an always available Internet connection to
(g) All fees described in the applicable Schedule are in enable Active or its designated representative to perform any
consideration of the Software and Services that Active of the obligations placed upon Active by this Agreement;and
provides. Active and Client acknowledge that certain credit (b) subject to the security requirements of Client,remote dial
card network rules and laws prohibit imposing a surcharge that up/internet access methods approved by Active to allow
is based on the type of payment method used (e.g., having a Active to remotely diagnose and correct errors in the Licensed
different fee for the use of a credit card vs. debit card), and Software and provide other Services.
therefore, each agrees not to impose such a surcharge on any 17.2 Client Obligations. Without limiting any of Client's
end user. g B Y
other obligations under this Agreement,Client will:
(h) Active shall cause a Third Party review of its operations
and related internal controls to be conducted annually by its (a) use its best efforts to upgrade to any new Release or
independent auditors. Active shall provide to the City upon Version of the Licensed Software as soon as possible after
reasonable written request, annually, one copy of the audit becoming aware of its availability;
report resulting from such review, This would be the SOC or (b) ensure that at all times at least one current staff person of
SSAEI6 report. Client has been fully trained on the Licensed Software; and
14.2 Subscription fccs. (c) designate by written notice a single site and single person
To the extent set forth in the applicable Schedule, Client shall as the point of contact for telephone or other contact, which
pay to Active the Hosted Software subscription fees site and/or person Client may change upon fourteen (14) days
("Subscription Fees") for the term of this Agreement prior notice to Active.
established in Section 16 below. Client will be invoiced for 15. GRANT OF LICENSES AND LIMITATIONS
their first year Subscription Fees upon the first live operational THEREON
use of the Hosted Software ("Go-Live Date"), with
subsequent annual Subscription Fees being invoiced upon 18.1 Active hereby grants to Client a non-exclusive and
each anniversary of Go-Live Date. Payment will be made Net non-transferable right and license, subject to this Agreement,
thirty(30)days from invoice date. to install and/or use the Licensed Software, in the manner and
for the term stated in the applicable Schedule and Active
provided and related written user documentation as follows:
9
(a) Wokstation-Based Modules. In respect of each exceed the number of licenses granted to Client
Workstation-based core Module and each Workstation-based therefor as set out in the applicable Schedule.
add-on Module, Client may install and use each Module on
Workstations to access the Enterprise Database on the (e) Client hereby acknowledges that the mechanism utilized
Database Server, provided that the number of copies of any by the Licensed Software to control the number of Users or
particular Module in use does not exceed die number of Online Client Access which can simultaneously access and
licenses granted to Client therefor as set out in the applicable use Server-based On-line(Internet)Modules is based upon the
Schedule. number of Users who have at any time logged into Client's
(b) Server-based Add-on Modules. Client may install and computer network using their passwords, such that any User
use each server-based Module on as many Workstations as is so logged into such network in a. manner that would .
desired by Client, and Client may use and permit use of such automatically enabl the the User to access and use such Modules
Modules by its clients,all without limit to the number of Users will reduce by one t number of Users able to simultaneously
or transactions which simultaneously use any such Module, access those Modules, regardless of whether or not such User
provided however that: is in fact accessing or using any such Module. Client hereby
waives any claim, and releases Active from any such claim
(I) in respect of each TeleReg and Voice Server Module, and from any losses or damages Client suffers in relation
Client may install one copy of each Module on one thereto, in connection with the inability of Users to
IVR Server, provided that the number of copies of simultaneously access such Modules where such inability is
any particular Module in use does not exceed the the result of inactive logged-in Users absorbing available login
number of licenses granted to Client therefor as set access.
out in the applicable Schedule, and all such Modules 18.2 Additional Copies. Client will not make any copies of
together may be in Concurrent Use not to exceed the the Licensed Software except as necessary for the installation
number of licenses granted to Client for TeleReg permitted hereby and except for:
Lines Modules as set out in the applicable Schedule;
and (a) copies of each Module licensed hereunder for training
and testing purposes,and
(II) in respect of each Payment Server Module, such
Modules may be in Concurrent Use not to exceed the (b) for backup purposes, provided that all electronic copies
number of licenses granted to Client for Point exceed
Sale made include screen displays of Active's proprietary or
of Modules as set out in the applicable Schedule. intellectual property notices as recorded on the original copy
provided by Active and Client affixes a label to each disk,
(c) Server-based On-line(Internet) Modules. In respect of reel, or other housing for the medium on which each physical
each Server-based On-line(Internet)Module,Client may: copy is recorded setting out the same proprietary and
intellectual property notices as appear on the unit of Licensed
(I) install one copy of each Module on one Internet Software from which the copy is made in the same manner as
server, provided that the number of copies of the those notices appear on that original copy.
Module in use does not exceed the number of 19. LICENSED SOFTWARE FEES
licenses granted to Client therefor as set out in the
applicable Schedule;and 19.1 In respect of each Module, Client shall pay to Active all
applicable Licensed Software fees listed in the applicable
(II) subject to Section 18(d), permit Users to access and Schedule upon delivery (as defined in Section 2.3) of the
use such Modules to access the Database Server via Licensed Software.
Internet Clients connecting via a licensed Internet 20. MAINTENANCE SERVICES AND LIMITED
Server, and all such Modules together may be in WARRANTY
Concurrent Use not to exceed the number of licenses
granted to Client for Online Client Access Modules 20.1 Active will develop new Releases and new Versions of
as set out in the applicable Schedule multiplied by Licensed Software in accordance with the procedures and
twenty-five(25). other particulars set out in the Support and Maintenance
Handbook attached as Exhibit A.
(d) Cumulative Workstation-based Modules. In respect of 20.2 Provided that Client continues to subscribe for Support
each Cumulative Workstation-based Module, Client may: and Maintenance in respect of a particular Licensed Software
(I) install one copy of each Module on a single Product, Active will provide to Client, either in physical form
Workstation for each license granted to Client by mail or courier or in electronic form via the Internet, new
therefor as set out in the applicable Schedule;and Releases and Versions (and appropriate documentation) for
such Licensed Software Products on a when-and-if-available
(II) permit Users using such licensed Worltstation(s) to basis.
use such Modules) provided, for greater certainty, 20.3 Limited Warrnnty of Software. Active warrants that
that the Modules may be in Concurrent Use not to when utilized by Client in a manner authorized hereunder, the
Licensed Software will conform to the functional
10
fees that would have been payable hereunder had this supplement this Agreement in any way, notwithstanding the
Agreement been in force during the time in which Support and fact that Active may accept or otherwise approve such
Maintenance rights had so lapsed to the date of reinstatement, purchase orders. Active reserves the right to refuse any such
and purchase order for any reason not contrary to this Agreement,
(b) at least one additional year of Support and Maintenance including without limitation pricing differences as described in
from the date of reinstatement. Section 25.2.
23. TERM FOR SUPPORT AND MAINTENANCE 24.5 Additional Third Party Products. Client may purchase
Third Party Products in addition to those listed in a Schedule
23.1 Term. Active shall provide to Client, and Client shall by issuing additional purchase order documentation as
purchase from Active, Support and Maintenance for a period described herein, provided that the supply (or non-supply) of
commencing on the Support and Maintenance Start Date and, such additional Third Party Products will be subject to this
subject to termination as provided herein, continuing until the Agreement as though such additional Third Party Products had
following Support Renewal Date or anniversary of the Support been included in a Schedule on the date of execution of such
and Maintenance Start Date, with automatic renewals for one Schedule subject to the following:
(I) year terms thereafter until either party gives written notice (a) the price for such additional Third Party Products is
to terminate Support and the Maintenance no less than ninety subject to agreement between the parties each in their own
(90) days prior to the end of the then-current term, provided absolute discretion,and
however that the fees payable in respect of the Services and
the Products may be revised by Active in accordance with this (b) Active shall have the right to discontinue delivery of
Agreement. such additional Third Party Products upon at least ninety (90)
days written notice to Client without any liability to Client
---- whatsoever for such discontinuance.
APPENDIX 3: TERMS APPLICABLE ONLY TO THIRD 25. CHARGES AND PAYMENTS
PARTY PRODUCTS AND SERVICES
24. PURCHASE AND SALE; DELIVERY 25.1 Prices. The pricing applicable to Third Party Products is
as set out in the applicable Schedule in the form finally agreed
24.1 Purchase Commitment and Price. Active hereby to by the parties.
agrees to sell to Client, and Client hereby agrees to purchase Y9•2 Pricing Variability. Client acknowledges that:
from Active, the Third Party Products listed in a Schedule in .
the volumes and at the prices described therein. (a) the prices described in a Schedule are applicable for
24.2 Delivery. Active will ship all or any part of the Third six(6) months after the date of execution hereof, and such
Party Products to Client as soon as reasonably practicable (or, prices are based upon Client taking delivery of the full number
if the below-described purchase order documentation does not of any particular Third Party Product listed in the applicable
seek immediate shipping, at the time Active considers Schedule in a single shipment;and
reasonable in order to meet the desired delivery date (b) Client hereby agrees that after the expiry of such initial
described) after receipt by Active of a purchase order from six-month period or, in case of Client seeking, in a particular
Client specifying the particular Third Party Products sought, shipment, delivery of less than all of the Third Party Products
the number of such Third Party Products sought, the price of a particular type listed a Schedule, the actual prices may be
payable therefor, and the desired date and location of delivery higher. Prior to shipment of any Third Party Products that
thereof. Any such purchase order must, at a minimum, would be subject to pricing that differs from that described in
reference quantity,description and price. the applicable Schedule, Active will notify Client of any such
24.3 Changes by Client to Delivery Schedule. Following different pricing and Client will accept such different pricing,
delivery by Client of any purchase order documentation as mutually agreed between Client and Active, in writing.
described in Section 24.2, no changes by Client to the 26. SUPPORT FOR THIRD PARTY PRODUCTS
shipment schedule described therein will be permitted unless
For the purpose of isolating support issues and responsibility
Active is notified thereof in writing at least ninety(90) days in in respect of Third Party Products and their interaction with
advance of the delivery date sought in such purchase order any Products, Active will provide initial first-tier support, to a
documentation. maximum of fifteen (15) minutes per support inquiry, for
24.4 Acceptance of Purchase Orders. Purchase orders Third Party Products, as further specified in the Support and
delivered by Client to Active in respect or Third Party Maintenance Handbook.
Products are not binding upon Active until accepted by Active
27. PROPRIETARY RIGHTS
in writing. In any case, despite any indication to the contrary
contained in any such purchase order documentation, no terms 27.1 Third Party Proprietary Rights and Indemnity by
or conditions on purchase order documentation issued by Client, Client acknowledges that any Third Party Products
Client, other than the information required by Active as set supplied by Active hereunder are supplied by Active as a
forth expressly in this Agreement, will be binding upon reseller thereof and that the Third Party Products are subject to
Active, nor will any such terms or conditions modify or the intellectual property rights of the various third party
12
•
developers and/or manufacturers thereof, as applicable, electronic or otherwise, included in any Third Party Products
including without limitation copyright,trade secret,trademark, that are software.
and patent rights. Client will maintain in confidence and not 28.2 Warranties Provided by Third Party Suppliers.Third
use or disclose any and all confidential business or technical Party Products are warranted by the manufacturers,suppliers
information connected with any Third Party Product except as or licensors thereof in accordance with the warranty
specifically permitted by a party having legal control of such statements accompanying delivery of the Third Party
rights, and Client will defend, indemnify and hold harmless Products, and Client agrees that Client will rely solely on such
Active for any claim based on an allegation that any Third
Party Product provided to Client hereunder has been installed, Third Party Product warranties. Client agrees not to make a
used, or otherwise treated by Client or any client or customer claim against Active on account of any warranty,express or
of Client in violation of the proprietary rights of any third implied, which may apply to any Third Party Product If
party or on an allegation that Client or any client or customer Client notifies Active of a defect or nonconformity within
of Client has disclosed or used any confidential business or thirty(30)days of the date of delivery of such Third Party
technical information connected with any Third Party Product. Product,Active will assist Client in troubleshooting such
Third Party Product in accordance with Section 26. If such
27.2 Additional Terms. Client acknowledges that the defect or nonconformity cannot be remedied during such
possession, installation and use of Third Party Products may troubleshooting and such Third Party Product is still under the
be subject to additional terms and conditions accompanying Third Party Product warranty,Active shall contact the
such Third Party Products at the time of delivery. applicable manufacturer,supplier or licensor of such Third
29. WARRANTY Party Product to coordinate any returns or refunds. If a notice
of a defect or nonconformity is received by Active from Client
28.1 Warranty. Active warrants to Client that Active has the of the defect or nonconformity following the initial the 30-day
right to deliver the Third Party Products subject to any period,Active's sole obligation and liability will be to provide
documentation accompanying such Third Party Products at the support in accordance with Section 26. Returns and refunds
time of delivery and/or any licensing mechanisms, physical, are at the sole discretion of the applicable manufacturer,
supplier or licensor.
13
SCHEDULE
Schedule
Company Address 717 North Homier]Drive,Suite 2500 Created Date 9/2/2015
Dallas,TX 75201 Quote Number 00085510
US Currency USD
Prepared By Russ Baehr Contact Name Nancy Backus
E-mail mas.boehrt@activonetwork.com Phune (253)031-3008
Email nhackuatauburnwa.gov
Dill To Name CITY OF AUBURN Ship To Contact Nancy Backus
Bill To Contact Nancy Backus Ship To Address 25 WEST MAIN ST
Bill To Address AIM:Finance Dept.25 West Main Street Auburn,WA 98001 United Slates
Auburn,WA 98001 United States
�p Ss41:41. .tit t ' ="'i'"'f` 1 FPc `'s'N�1 ? 1r4;•' 1 ft .r$ �).3 k 1 k .{ 1 FCfi C' , lt:1•' zu� r ten 4a t s •k.{ 5 ' �t
ACTIVE Not•
ACH
Rnmtttanco• Barque 1
"Daily"Every
72 Hours
ACTIVE Net- The Class Cuslpnsar Loyally Professional Sumter.Conversion to
c lass. ACTIVE.Not Credit(the"Cradle)is condltlonod upon pliant fulfilling all of its
Customer obligations under the Agreement duiinA Iho initial loon of the Agroamont or •�r .
Maio years wludmvar Is longer.If[lion!falls to fulfill such obligations 4
Cllonf must pay to A..VO Iho full mnoum of No Crad4.The CrCtil!Is ony to
PIOIc8610na1 SOfYI. . o l x0000.00 z .90
,000.00
'Scrvicos _ bo u4od for piufoasbnoPaorvN;as,but cannot be u,otl3arharuviaro or � �•Carvorslon to - rolmbursenton i of nir(nrNLantporlotlon cost.Clie nt must be curmnl an "
:ACTiVC Nol. - Class Malnlenmtco unlli ACTIVE Go Llvo to bo eligible tkT Iht%Credlt. - .:
Senico Chargas vAl increase l000tandard list rata after Inl(lat toim of the
•Crcdll_ . • . Agreement. ` -
•
0
VDO DOCS #1577247 v. 1
ACTIVE Not Service P ickago Standard 5 consists of Iho Iollewlag
Services:
•rornato burnoose process review
•remote functionally review&data collection preparation
•remote data collection review
•romans data entry(syctem Inventory and policycontrols)
ACTIVE Net• 'remote user testing
Service •annals train the trainer training
Package Service •remote Go Live preparation 1 21,200.00 21,200.00
Standard 5 •remota hard,varo configuration
Thu scope of Services Is contained to Iho 5 tuncUonalitlos listed below.
50%of total Service coots wilt be billed at Sonice initiation.payable within
30 days of the date of Invoice.
50%of total Service costs will be bitted at Service completion,payable
within 30 days of the date of invoice.
w .:u b to-•:i... '
•ACTIVE Nol
Functionality 1-lit 1 . --•Activhy • SaaS
Registration . r • -'
ACTIVE Not-
Funclionntity:
Facilit bees 1
y
Reservation
•
ACTIVE Not- .. -
Functionality:
League _ SaaS - • t
a5
Schoduling - - - _ • _ , s
ACTIVE Net•
Functionality: SaaS 1
Membuishipc
ACTIVENet- - +• G •
•
Functionally: SaaS
PCS
ACTIVE Net•
Public
Into:loco
($1.00 Service
SaaS
Charge
Uranium i
ACTIVE Not- • -
Public' -
Inlorlaco- SaaS • Migration Loyally Ratos for Ilrct loon of contract for U.S.organiiations 1 4.25
Online bete/eon 51,500,000 to 58,000;OOD in annual revenue through ACTIVE Not.
•
Transaction •
Fee
ACTIVE NCI•
(r-resit card SaaS 1 0.10 0.10
refunds•flat
too)
(
• •
ACTIVE Not• .
- .
'Public
. - .
• •• •
Interface Eao . • -
.
'Sal ue-- ;':' .• SsaS '
,
. . . . . i-...i
. _, • . .••
•clent" '.•• :. ' . • - -L:: • '
, : - • " - 1; , ' 1 4.:-.:-..• - . f'
- •
ACTIVE Not-
Staff Interfaco
Migration Loyalty Rates for fast form of contract for U.S.organizations
•Payment
SnaS between 51,500,000 IC$8.0130.000 in annual rammer&through ACTIVE Not 1 2.75
Processing
and Canadian organizations oxcoodIng$8,000.000 annual rovonue.
Foe•Croat
Card
. ,.. •
ACTIVE Not-. ' • , - . . .
.
,
Stall Interface . . . . v. ,
•Paymont
, .
,PIOCOSSifIC) ..
' .
Foe- : Saa5v : : .--..- I 060
'
Electronic '
i-iii.iiii..,1.;_it ,:ecti. . ... .-b4
ACTIVE Not•
Staff Interface Migration Loyally Rotes for that!cum of contract for organlzallons batman i
SaaS 1.5D
•Technology 51,500,000 to$8.000030 in annual revenue through ACTIVE Not.
pen
_ .
ACTIVE Not-
Technical
ACTIVE Net Technical Service%CLASS Data Conversion•Customise
Services:
Service consists of the lotlevAng Services: 1 7,000.00 7.000.00
CLASS Data
•remote configuration.toctlng&tralnIng
Conversion-
Cu:amnia
'ACTIVE Net- . .
Service
'Package: ,- Service • - - - • .1.400 00 , 1,400.00 .
Ricans° •. . . . - - . . • ..
.
Export - . -
.
ACTIVE Net-
Technical ACME Not Technical Services:Financial Export consist&ol the fallowing
Services: Service Services: 1 1.400.00 1,400.00
Flnanclal •remote configuration,lasting&training
Export
ACTIVE Not ' ACTIVE Nat Technical Services:GIS Import Consists of the fcillowing,,,..7'..; .. .. - „,.....:i.... . . ..... .‘, ,... .
SarvIcas:GIS" - - - - '
• ' •remota configuration;toiling&Training
linpoit .
ACTIVE Not-
ACTIVE
SaaS 1
Advantage-
opt out
. , . ..„ .
'ACTIVE Not- • • - -
•
Magazine, . SaaS .
. — • -• • - -. .
:Offer•opt Out •• ; . .
2
•
Toter Price USD 2.400.00
ServiceTotal 2,400.00
Ali face described heroin are in cens[derntlon or the Software and Services that ActMa provides.Active and Client acknowledge that certain
credit card nrtemrk lidos and laws prohibit Imposing a surcharge that Is based on the type of payment method used(e.g..having a different foe
for dm use of a credit card vs.debit card),and therefore,each agree net to Impose such a surcharge on any End User.
•
The payment opvorte weotter may include MasterCard,Visa,American Express and Discover.
'Sales Tax not included In tolal price. Sates lax.where applicable,vial be added to your invoice.
O,uote Acceptance Inforrenlion " ' . i•
Signature: ,7 _
Prim Name: St-NN
Dale: C) •3 .15
•
PGA 01 applicable):
3
Contact Info: Invoice
10102 Toms's Cowl
Son Dlugo, CA 02.121 lthilod Slides
Minna:000.543-7223 Op lion 4•litr,/100-312-1010
Otimillunn?Eituill us at,04111SatLiggYil rob CITY OF AUBURN
quest it . hymn.° ' hivotinhito ! cuproinerl!oi
_
4700 : 4100070008 17...KPit:til
Sill To: Fililp To:
CITY OF AUIIUIU4 City OF AUBURN
Alin:Accounts finyntao Alin;Dud,..14iallo
25 Was!Mal Stfanl 28 Wont Main Muhl
Auburn,WA 9111h1 Unilod Staten Auburn.WA U91101 Unliail Stalco
'Solna Porti00 Sat idea Connect II oil el Taupe I Duo Vito - trringtAlloir Type I Purr
Main(Rooms, 804 woomona.5 • •. ou tta/ ' le.autv
. . . INV.1110 GOV SOL i USD
i• _ . ,...
' —
.,
Lit I Itanyli...... :-. r•:-; .. • :,; -1 Doperlolinn •- ; Covered cIty •ilionlien; Unli.PtIool,:•-;;"•,-•Ainotliil..•
L '' •
; ACM 3(Maul•Malillunilliett&tit/Wiwi RollUcedl.Enthiulse i .
1 1 ' 70013131R. i Lb:wised Cow Mariultia(pat 10.000)liolluiallot UIVO 1/2014— 1B0 I 1 Yoor ; 1780.00. 1,7604001
1 07131/2016:
., • ,... . -........_____ • . ., . . .,_ . . .. . t •. . ,
• ; - Oulthalph I . •3:780.00:
Tim'thine; 958.25:
i - inithloo-761nel 4,100.25:
110080 Pay Oslo Amount; Bililiono Nut' 4,100.25.:
Naha:
Youth/inaltillmoril I Qi I .
. .... .. ..
Contact Info: Quote
717 AL Harwood Street
Dallas, TX 75201 United States
Phone:469-291.0300 Option 4•Fax:469-533-3940
Questionsi Email us at agye_ARWaggyfi,tom I-----—-—7'Ta iflorATBITCri 7 r--.57:777—":—.1
Ecust a ; Quote# • [Quota Date•I:: Customer PO ft'. ..r...I
I._4709.__1 110001B92IM 27-3UL-15 1 . ___ ._._ i
8111 To: Ship To:
CITY OF AUBURN CITY OF AUBURN
Attn:Accounts Payable Attn:
Attn:Fhance Dept. Attn:Finance Dept.
25 West Main Street 25 West Main Street
Auburn,WA 98001 United States Auburn,WA 96005 United States
7P(Arson • ••; Soryice Contract#-:-.71 , Deal Icl-f-- Terms -.. TerhirciYaterTreiciietiOnly22:7 .Cur-i•-
1..
MaInt Renewal SC4100014967-111 1
I I I INV-INC COM SOL _—_____
_USD
itni.l...-Item# PT. •-.. ' •• ' ;••• Description . : . : ±-.,[Covered Qty IDurationt Unit Price • •.• •-Amount
i 1 70636MR 1
Class-Maintenance&Support-Crystal Repouts:03/01/2015-- L
1 IMO 1 Year I 107.50 187.50
' 02/29/2016:
The amounts on this quote are en estimate based upon the order's current configuration and are subject to :,..T.-,: .... . r,r7:-.
change should the configuration change. For any changes to this order,please contact your Account Manager. • . T , ; .'
.. '.. 1., •Suo-totan 187.50
Thank you.
,,-:.D16coutit:• -28.13
Sub-total:
• ' 159.38
I -. Tzix fatal:, 15.19
1 ' Quote Total j 17432
4
Contact Info: Quote
717 N.Haiwood Street
Dallas, TX 75201 United States
Phone:109-291-03110 Option 4•Fax:169-533-3940
Questions?Email us at ACtiveAROMILYgst#1.1 1----7-- CT-77 CITY OF AUBURN ' i 1'. :. a "71
L-dust Fili.--Q0O-te#--LQuote Date E ' iCustoiner.P0# . '1
11-4-709 .1-411100989I1M I 27-.ML-15 i
0111 To; Ship To:
CITY OF AUBURN CITY OF AUBURN
Ann:Accounts Payable Attn:
Attn:Finance Dept. Attn:Finance.Dept.
25 West Main Street 25 West Main Street
Auburn,WA 98001 United States Auburn,WA 98001 United States 1
f: . Sales Person Sevitetontract# Dea....IiTh Terms _H_Due,..'D.ate j
Transaction Type Curh
Flaint Renewal SC4100014967-101 j—' 1 I -INC
NV COM SOL USD
I
1.11 •-..;1E-Itent'#/y 1.. -tet,:.:.,.2„ie:;;;;;:i.,:,;a1.7.Descriptiou :' ..:.:; --- - - eavered-Qty I Duration'.Unit Pricer. ',..--:, Ainonittl
__‘.... - ....-....::-1_1On.' 21.11tAPO.L.11O
Payment Manager-Maintenance El Support Renewal-Payment
1 1 71282MR 1.00 1 I Year I 2,500.00 2,500.00
Processing Engine-Enterprise:113011/2015--02/29/2016:
j Payment Manager-Winters-ince lk Support Renewal-POS Plus:
1 2 I 71284MR
j I 03/01/2015--02/290016: 5,00 • 1 Year 875.00 4,375.00
I--
, _,,,691,,R 1 Payment Manager-Maintenance Ft Supont Reriewal-Department
1.1)r, I 1 Year 3,750,00
'“ Connector:03/(11/21115-02/29/2016:
' Payment Manager•Maintenance Pt Suppoit Renewal-Online 1 3—T-7511"1
1 1 71278MR 1.00 1 Year 2,50(1.00 2 500.00
I Payments(per 10,000 population)-cities:03/01/2015--02/29/2016: J
1_,_
--1-- •
5 , 70720MR ; Class-Report Inquiry:03/111/201T--02/29/2016 1.00 _1 1 Year 157.5(11 157.50
■ : Class-Finance-link(Financial Systems Integration)-per seiver:
; a 7068OPIR ; 03/01/2015_02/29/2016 1.00 1 1 Year 638241 630.14
1 7 707 nma ii-Class-Point of Sale:03/01/2015--02/29/2016 _1_ 5.00 1 Year 551.251 2,756.25
The amounts on this quote are an estimate based upon the order's current configuration and are subject to
change should the configuration change. For any changes to this order,please contact your Account Manager, .
Thank you. 1 . ,Subqotali 16,976.251
1
Discount: -2,501.53!
I-- •Subktotal: 14,175.361
Tax Total: 1,346.66;
i
i Quote Total: 15,522.021
t..._
5
EXHIBIT A
MAINTENANCE EXHIBIT
SUPPORT AND MAINTENANCE'
The following supplies and services are included in Support and Maintenance:
• Unlimited technical support between 5:00am and 6:00pm Pacific Time,Monday through Friday via
telephone(800.6634991),email or web portal(http://support.theactivenetwork.com)
• Unlimited phone support for System Down issues on a 24 hours x 7 days a week basis,provided that:
o If self-hosted,the site must have remote access and Internet email capability for extended support
hours
o Support calls placed during extended support hours must be placed by an authorized contact
person
o The type of support call is an urgent issue that includes site down,revenue impacting,or customer
facing issues that have no reasonable work-around
• Access to Active's secure customer care web portal,discussion forums, knowledgebase and online training
materials
• Regular documentation and communication
• Support also includes, if such assistance can be provided in 15 minutes or less:
o Assistance troubleshooting Third Party Products(e.g.,Crystal Reports, Citrix client)
o Assistance to isolate and/or troubleshoot difficulties resulting from sources other than Active
Network products and services,such as:
• General network/Internet support(e.g., network access,printing, internet access)
• PC hardware troubleshooting
• PC setup,configuration and optimization
• Network operating system.configuration and functionality
• Basic Microsoft Windows functionality(i.e. Windows Explorer or Internet Explorer)
• Loss of supervisor or other password
ANNUAL SUPPORT AND MAINTENANCE FOR NON IIOSTCD CUSTOMrRS P
The following supplies and services are included in Support and Maintenance for non-hosted customers:
• New releases and version of the Software and free assistance in planning upgrades
SUPPORT AND MAINTENANCE FOR HOSTED_CUSTOMGRS
The following supplies and services are included in Support and Maintenance:
• Installation of new Software releases
• Monitoring of connectivity and critical functionality at all times (24hr x 365 days/year)by skilled personnel
6
using an extensive series of automated probes from multiple locations
• Response to site-down/critical issues within one hour, with reasonable efforts to advise your organization
of the current status and expected resolution time
• Service agreements between Active and critical vendors essential to the continuing successful operation of
the hosted environment
• Scheduled maintenance to increase performance, fix defects or update applications, with reasonable efforts
to notify your organization of scheduled maintenance times and potential impacts to service
• Urgent maintenance(done to correct network, hardware or Software issues that are likely to cause
significant service disruption and that require immediate action), which may temporarily degrade service or
cause outages. Active may undertake urgent maintenance at any time deemed necessary and shall provide
status updates to your organization as soon as possible.
SUPPORT ISSUE PRIORI I ILSIAND TIMPLINES �'- '' 4
b^>
TICKET RESOLUTION TARGETS
• New support incidents are assigned one of the following levels, each with its respective standard ticket
resolution target:
Call Description Standard
Priority Level Completion Target
Priority I —System Fatal issues that result in the customer's inability to fulfill 1 business Day
Outage critical business functions (i.e.,those pertaining to core
functionality such as processing registrations, memberships,
rentals) and that have no reasonable work-around
Priority 2—High Serious issues significantly impacting use of the system but do 2 business day
Business Impact not prevent core functions from being fulfilled(i.e., Customer
cannot perform critical business functions;Customer
experiences severe site degradation)
Priority 3 —Medium All other issues,except those classified as low;(e.g.,how-to 3 business days
Business Impact questions,reporting/reconciliation issues,general questions,
work around options)
Priority 4—Low Issues that are not time-sensitive or may be undertaken as None
Business Impact customer service initiatives outside the scope of this
Agreement(i.e., feature requests or low priority questions)
Guaranteed Uptime For clients licensing Hosted Software 99%
SERVICES NOT INCLUDED
The following supplies and services are excluded from Support and Maintenance:
• Services required to remedy problems that stem from changes to or defects in system configuration upon
which the Software was originally installed
• Services required to remedy problems which do not stem from any defect in the Software
• Services required to remedy problems caused by lack of training of Client's personnel
• Improper treatment or use of the Software
• Onsite or remote training services
• Full report customization service
7
•
• Database-specific services or assistance
RESTRICTIONS " }t .# :
The following actions will void Active's obligations under this Support and Maintenance Handbook:
• The use of any other application that modifies data in the database, whether created by you or otherwise
• The use or creation of third party applications that work in connection with Active's application or
application database without prior written notification and consent from Active
. . HOLIDAY HOURS(US AND CANADA) a _
Holiday Open with Closed
reduced staff
New Year's Day(January 1st) ✓
Martin Luther King Day(3rd Monday in January) ✓
President's Day(3rd Monday in February) ✓
Good Friday(Friday before Easter) ✓
Victoria Day(3rd Monday in May) ✓
Memorial Day(Last Monday in May) ✓
Canada Day(July 1st) ✓
Independence Day(July 4th) ✓
Civic holiday(1st Monday in August) ✓
Labor Day(1st Monday in September) ✓
Canadian Thanksgiving/Columbus Day(2nd Monday in October) ✓
Remembrance Day/Veteran's Day(November 11th) ✓
US Thanksgiving(4th Thursday in November) ✓
Day after US Thanksgiving(4th Friday in November) ✓
Christmas Day(Dec.25th) ✓
8
Boxing Day(December 26th) ✓
New Year's Eve(December 31st) ✓
9